The right to life of the unborn is less qualified in the Constitution than the right of life of the born, counsel for a pregnant Nigerian woman, who is challenging an order for her deportation, has argued before the Supreme Court.
In exchanges with some of the five judges, Dr Michael Forde SC, representing both the woman and her unborn child, said Article 40.3.3 of the Constitution required the State to protect the right to life of the unborn. The right to life of the unborn was qualified by the equal right to life of the mother, and by rights to travel and to avail of information, he said.
However, the constitutional guarantee of the right to life of the person amounted to a guarantee of protection against unjust attack while the right to life of the unborn was guaranteed against any attack.
In those circumstances, the right to life of the unborn was less qualified and was not confined to protecting against abortion or to situations where the mother suffered from adverse medical conditions.
The duty of the Minister for Justice, Equality and Law Reform was not to do anything that would threaten the right to life of the unborn, counsel said. The duty might "perhaps" extend to requiring the Minister to carry out pregnancy tests on all female applicants for refugee status who were of child-bearing age.
Dr Forde said all he was asking the State to do was to "hold its hand" until the woman gave birth to her child. Taking action could conceivably endanger the right to life of the unborn.
The undisputed evidence was that the mortality rate in Nigeria was higher than in Ireland, and it would be a breach of the unborn child's constitutional rights to deport it to a country where the risk to its life was higher than here.
Counsel was opening an appeal by the 32-year-old woman, who lives Co Kerry, and her unborn child against the High Court's rejection of their challenge to an order for the woman's deportation. The baby is due next May .
In his High Court judgment, Mr Justice Smyth found that, in the absence of any adverse medical condition of the mother's, the right to life of the unborn, as enshrined in Article 40.3.3, was not an issue in the case.
The case concerned the legal right or entitlement of the Minister to deport a person who had failed to secure a certificate of refugee status from the State because she was pregnant and had nothing to do with abortion, the right to life of the unborn or what was sometimes referred to as the woman's "right to choose".
In her appeal against the decision, the woman has raised issues related to the handling of her application for refugee status and other procedural matters.
She also contends the making of the deportation order violated her rights and those of her unborn baby's, including the unborn's right to life.
In submissions yesterday, Dr Forde said the reasons for the High Court's refusal to make a declaratiuon that the unborn was a person were not clear.
The State was denying the unborn was a person.
Counsel argued that there were 18th-century cases dealing with the property rights of the unborn which, with various other decisions, including some made since the passing of the 1983 constitutional amendment dealing with the right to life of the unborn, seemed to make it impossible to deny the unborn was a person.
The extent of the rights of the unborn was another day's work.
He argued that, if the unborn was a person, it had no nationality and, under the immigration and refugee legislation, only non-nationals might be deported.
The appeal continues today.
